Citation Nr: 21031307 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 19-11 919 DATE: May 21, 2021 ORDER Service connection for an unspecified depressive disorder is granted. REMANDED Entitlement to service connection for diabetes mellitus, type 2, to include as due to in-service exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the right hand, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the left hand, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the right foot, to include as secondary to diabetes mellitus, is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his unspecified depressive disorder is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for an unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1963 to November 1966, to include service aboard the U.S.S. Kearsarge during the Vietnam Era. In March 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). In September 2016, VA associated official service department records that had existed but had not been associated with the claims file when VA first decided the Veteran's claim for service connection for diabetes mellitus in December 2010. Specifically, additional military personnel records not previously of record for the Veteran were added to the file at that time which showed that the Veteran served aboard the U.S.S. Kearsarge at some location around Vietnam in August and September 1964. These records are relevant to the Veteran's claim for service connection for diabetes mellitus due to in-service exposure to herbicide agents. Thus, the provisions of 38 U.S.C. § 3.156(c) allowing VA to reconsider a claim without new and material evidence apply to the Veteran's claim to reopen the previously denied claim for service connection for diabetes mellitus. Service Connection Acquired Psychiatric Disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) an in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Further, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran underwent a VA initial PTSD examination in September 2016, with an addendum opinion obtained in November 2016. The examiner found that the Veteran did not have PTSD, but diagnosed him with an unspecified depressive disorder. As such, the current disability prong of this claim for service connection has been met. The Veteran testified at the recent hearing before the Board that his current psychiatric symptoms began in service after a stressful incident with a Russian submarine in early 1966 while he was serving aboard the U.S.S. Kearsarge. The Board recognizes that the September 2016 VA examiner opined against service connection for a psychiatric condition because there was no clear link between this disability and the Veteran's active duty. However, while the Board cannot ignore or disregard the VA examiners' medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the 2016 VA examiner stated that the Veteran's psychiatric condition was less likely than not related to his active service because there was "no clear link" between the condition and his service. As such, the rationale for the examiner finding against service connection appears to have used an incorrect legal standard, that of a "clear link" being needed to relate the condition to service. Further, the opinion did not address the Veteran's lay testimony of the onset of his psychiatric symptoms. As such, the Board finds that this negative nexus opinion holds little, if any, probative value to the issue of a medical nexus for a depressive disorder, as it was based on a higher legal standard than required and was not based on relevant evidence of record. Indeed, in this case, the Veteran has sufficiently asserted experiencing symptoms of his diagnosed psychiatric disability since active service, and this lay evidence is not contradicted by any competent, probative medical opinion of record. As such, the evidence supporting service connection is at least in equipoise. Affording him the benefit of the doubt, service connection is warranted for his unspecified depressive disorder. REASONS FOR REMAND Service connection for diabetes mellitus, type 2, to include as due to in-service exposure to herbicide agents The Veteran also seeks service connection for diabetes mellitus, type 2, a disability for which a presumptive service connection is warranted for veterans exposed to herbicide agents during active service. In-service exposure to the herbicide agent Agent Orange can be conceded for veterans who served in the Republic of Vietnam during the Vietnam Era. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the term "Service in the Republic of Vietnam" includes, not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to herbicide agents (Agent Orange). In this case, the Veteran served aboard the U.S.S. Kearsarge during his active service, which occurred during the Vietnam Era. His DD Form 214 shows that he had two years and eleven months of foreign and/or sea service, and his service personnel records contain a note that he was awarded a medal for service in Vietnam waters in August and September of 1964. However, the Regional Office did not make a determination as to whether the Veteran had service aboard the U.S.S. Kearsarge in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam during his service. In addition, deck logs from his time aboard the U.S.S. Kearsarge have only been obtained for December 1963 to February 1964. Thus, they are incomplete, and the claims file, therefore, lacks the necessary information needed to determine whether the Veteran had service "in the Republic of Vietnam." As such, a remand is necessary to obtain the complete deck logs from the U.S.S. Kearsarge during the Veteran's service and to determine if he had any service in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. Service connection for peripheral neuropathy of the hands and right foot, to include as secondary to diabetes mellitus The Veteran also seeks service connection for peripheral neuropathy of his hands and right foot. His VA treatment records show that he has been diagnosed with diabetic peripheral neuropathy during the appeal period. As such, the peripheral neuropathy claims on appeal are inextricably intertwined with the claim for service connection for diabetes mellitus being remanded herein. Therefore, the Board finds that the peripheral neuropathy claims must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Accordingly, these matters are REMANDED for the following action: Make all appropriate efforts, to include contacting all appropriate official sources, to include the National Personnel Records Center (NPRC), and/or the Joint Services Records Research Center (JSRRC), to obtain the Veteran's complete service deck logs and determine if he had active service within in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. (CONTINUED ON NEXT PAGE) Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.